The Court’s decision in Hobby Lobby takes pains to emphasize that it is resolving only the dispute before it, but the principles it has adopted will have an obvious impact in other kinds of religious freedom claims in other contexts. One area discussed briefly by both the majority and dissent is discrimination in employment and public accommodations.

There are numerous state or federal laws that prohibit business from discriminating against employees (and potential employees) or their customers on various grounds, including race, sex, religion, disability, familial status, and, more recently, sexual orientation. Some business owners object to those laws on religious grounds. If the Religious Freedom Restoration Act (RFRA) requires giving Hobby Lobby a religious exemption from the contraceptive mandate of the Affordable Care Act, does it also provide other businesses with a defense against civil rights laws prohibiting discrimination?

Justice Ginsburg’s dissent raises that specter, noting religious freedom challenges brought in the past by a restaurant that objected to serving African-American patrons, a business that did not want to hire women who did not have their husbands’ consent to work outside the home, and a photography studio that wished to avoid photographing a same-sex wedding. The majority decision downplays those concerns, but its explanation may not provide civil rights advocates the assurance they were hoping for.

After referring generally to Justice Ginsburg’s concerns, Justice Alito’s decision addresses only one example – race discrimination in employment – which is arguably the least likely to arise in the modern day (Justice Ginsburg’s example was from a 1966 case) and the easiest to resolve. The majority explains that the government may deny an accommodation when the law serves a compelling government interest and the non-discrimination rule is narrowly tailored to that interest. In the context of racial discrimination in employment, the Court writes, the government “has a compelling interest in providing equal employment opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

One might be forgiven for assuming that the same is true of the other forms of discrimination mentioned by the dissent. But that assumption is surely open to debate. That is because the Court has, in other contexts, distinguished between racial discrimination, on the one hand, and sex and disability discrimination, on the other. For example, under the Equal Protection Clause, the Court applies strict scrutiny – the same test it applied in Hobby Lobby today – to laws that discriminate on the basis of race, but only “intermediate” scrutiny to sex discrimination, and only “rational basis” scrutiny to disability discrimination (and, up to this point, discrimination on the basis of sexual orientation).

Does that mean that the government may only have the “compelling” interest required by RFRA in proscribing racial discrimination, but not sex, disability, or sexual orientation discrimination? As far as I know, the Court has never decided that question in the RFRA context or any other.

The Court has touched upon a seemingly similar question in applying the Eleventh Amendment to federal statutes that subject states to suit for violating federal civil rights statutes. There, the Court has said that before Congress may abrogate a state’s sovereign immunity to suit by citizens, Congress must establish a history of constitutional violations justifying the abrogation and show that there is a “congruence and proportionality” between that history and the means chosen to address it. And in Board of Trustees v. Garrett, for example, the Court said that because disability discrimination is subject to lesser scrutiny than race discrimination, it is harder for Congress to show that required pattern of unconstitutional disability discrimination or demonstrate congruence and proportionality between that history and the demands of the Americans with Disabilities Act.

Presumably, businesses challenging nondiscrimination statutes will point to the Eleventh Amendment context in support of their position. But the Eleventh Amendment analysis asks a different question than the one posed by RFRA, which asks whether eliminating disability discrimination is a compelling government interest, not whether there has been lots of unconstitutional disability discrimination by states or whether the ADA prohibits greatly more discrimination than the Constitution itself.

Still, one might suppose that the level of scrutiny the Court applies under the Equal Protection Clause is in rough proportion to the importance of eliminating that form of discrimination. But that assumption is arguable as well. The Court has explained, for example, that racial discrimination gets strict scrutiny because there is almost never a rational reason for it, while the differences between men and women means that sex discrimination is somewhat more likely to be based in justifiable reasons rather than simply animus or stereotypes. It has said similar things about disability discrimination. And it does not necessarily follow that, just because a particular kind of discrimination may be justified more often, the government has a lesser interest in eliminating that discrimination when it is unjustified.

No doubt, some will disagree and it seems likely that the debate will have to be settled in further litigation. It is virtually certain, however, that today’s decision will play a prominent role in those decisions.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.